DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

 ex-AA, USN
Docket No. ND99-00903

Applicant’s Request

The application for discharge review, received 990622, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to convenience of the government.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000323.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge, almost ten years after separation.  I am a good citizen, husband, father, and should be allowed to pursue a career in Law Enforcement; and enjoy the veterans benefits owed to me based upon my two years of Honorable service.

2.  My average conduct, efficiency rating, and proficiency marks were good.  Throughout my active duty, my performance records were never below an average of 3.8 (out of a possible 4.0) which covered all areas of service including: rate knowledge, reliability, military bearing, personal behavior and others.

3.  My record of promotions showed that I was a good service member.  In March of 1989 I advanced to E-2/AA; and in May of 1990 I advanced to E-3/AN.  Later I tested for E-4/Aviation Ordinance-Man and passed my test being recommended for advancement in August of 1990.

4.  My ability to serve was impaired by my youth and immaturity.  I was 18 yrs old at the time of my separation and could not have possibly realized the consequences of my actions.  When I first went to my Division Officer, I was looking for help not punishment.

5.  My ability to serve was impaired because of marital and family problems.  I got married only 4 days after my 18 birthday, and 3 months later was the father of twin boys.  Trying to support my family of four, mixed with constant fights with my wife resulted in a broken marriage.  Back home my mother was having severe psychological problems and ended up having a nervous breakdown, so I had no one to turn to. 

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Character Reference letters (3)Copies of Children's Birth Certificates (5)Copy of Certificate of Completion for Corrections TechnologyCopy of Certificate of Completion for Basic Correctional Officer CourseCopy of College TranscriptLetter of AppreciationCopy of Honor Roll Congratulation Letter Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   USN			None
	Inactive: USNR (DEP)	880918 - 881016	COG

Period of Service Under Review:

Date of Enlistment:  881017		Date of Discharge:  901025

Length of Service (years, months, days):

	Active:    02  00  09
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  47

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.46 (3)	Behavior:  3.53 (3)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  None 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900803:	Medical Officer evaluation indicates applicant is a drug abuser without dependence and a first stage alcohol abuser with dependence.

901003:	NJP for violation of UCMJ, Article 92: Dereliction in the performance of his duties by willfully failing to properly perform his PMMS, violation of UCMJ Article 112a: Wrongfully use some amount of marijuana on or about 900915, as evidenced by self admission on 900919.
	Award:  Forfeiture of $405.00 per month for 2 months, restriction for 60 days, reduction to E-2.  No indication of appeal in the record.

901003:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your service record and misconduct due to drug abuse as evidenced by your service record [Extracted from CO's message].

901003:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation [Extracted from CO's message].

901011:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse.

901016:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 901025 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In response to applicant’s issues 1-3, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D).  However, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.  

In response to applicant’s issue 4, the Board found that the applicant's age, education level, and test scores qualified him for enlistment.  While he may feel that his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.

In response to applicant’s issue 5, the Board found nothing in the records nor did the applicant submit any supporting documentation that showed that his personal problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant's chain of command. The Board will not grant relief on the basis of this issue.

Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, can be considered.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships.  In reviewing the applicant’s post service, the Board was impressed with the efforts he has made in attempting to recoup his reputation which has been sullied by his misconduct in the Navy.  However, the applicant needs to submit more post-service documentation in order for the Board to consider a change in characterization of discharge.  The applicant needs to submit verification of community service and having remained drug and alcohol free for the past ten years.  Therefore, relief will not be granted at this time.  The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at a personal appearance hearing is highly recommended. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, for willful dereliction of duty, if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023